MARGARET GROSS, APPELLANT,
v.
JOSEPH E. SIMANONOK, APPELLEE
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Margaret Gross appeals a trial court's order vacating a 2.5-year-old final summary judgment in her favor. The court reversed the vacation order, holding that a final judgment that was not timely appealed becomes res judicata and cannot be vacated based on a subsequent change in law or unsubstantiated allegations of misrepresentation.
The trial court lacked authority to vacate the final judgment. A final judgment that is not timely appealed becomes res judicata, and judicial error based on a mistaken view of the law is not grounds for vacation under Florida Rule of Civil Procedure 1.540. Additionally, Simanonok's allegation of misrepresentation was refuted by the record.
[1] A trial court lacks authority to vacate a final judgment after an appeal has been filed.
[2] A mistaken view of the law, even if later corrected by subsequent case law, does not constitute grounds to vacate a final judgment under Fla. …
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Join FLexlaw to unlock all legal intelligence“Although Carroll v. Dougherty, supra, is now the law in Florida, the 1975 judgment, not having been timely appealed, became res judicata. A mistaken view of the law is a judicial error as distinguished from "mistake, inadvertence, surprise, or excusable neglect" and is therefore not one of the circumstances contemplated in Fla.R. Civ.P. 1.540 under which final judgments may be set aside.”
Establishes the core holding that judicial error based on law does not justify vacation of a final unappealed judgment
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Join FLexlaw to unlock all legal intelligenceIn December 1975, a trial court entered summary judgment for Margaret Gross, refusing to enforce a contract for sale of her homestead to Joseph Simano…
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SCHEB, Judge.
Appellant/defendant Margaret Gross challenges the trial court’s order vacating a final summary judgment entered in her favor. We hold that the trial court was without authority to vacate the judgment, and therefore we reverse.
On July 10,1978, appellee/plaintiff Sima-nonok filed a motion to vacate the final summary judgment entered in this case on December 8, 1975. In the 1975 judgment the court had refused to enforce a contract for sale of Gross’ homestead to Simanonok because the contract had not been witnessed by two persons. No appeal was taken from the judgment. In his 1978 motion to vacate Simanonok sought to have the judgment vacated on two grounds. First, he contended that since this court held in Carroll v. Dougherty, 355 So. 2d 843 (Fla. 2d DCA 1978) that it is not necessary to have witnesses to contracts to convey homestead property, the order granting summary judgment was erroneous. Second, he alleged that Gross had misrepresented to the trial court before the summary judgment was entered that she intended to retain her homestead, when, in fact, she sought to avoid the contract with Simano-nok in order to sell her property to a third party.
Gross moved to strike the motion to vacate, arguing that this court’s holding in Carroll, rendered subsequent to the summary judgment, afforded no grounds to vacate that judgment. On July 27, 1978, the trial judge granted Simanonok’s motion to vacate. This timely interlocutory appeal by Gross ensued with a cross-appeal by Sima-nonok.
Although Carroll v. Dougherty, supra, is now the law in Florida, the 1975 judgment, not having been timely appealed, became res judicata. A mistaken view of the law is a judicial error as distinguished from “mistake, inadvertence, surprise, or excusable neglect” and is therefore not one of the circumstances contemplated in Fla.R. Civ.P. 1.540 under which final judgments may be set aside. Fiber Crete Homes, Inc. v. Division of Administration, Department of Transportation, 315 So. 2d 492 (Fla. 4th DCA 1975). Moreover, Simanonok’s allegation of misrepresentation is refuted by the record which was before the trial court on entry of final summary judgment. Therefore, Simanonok was not entitled to relief on either ground and the court erred in vacating the judgment.
We note that on August 24, 1978, three days after this appeal was filed, the trial court vacated the July 27, 1978 order and entered an amended order denying Si-manonok relief. By cross-appeal Simano-nok attacks the validity of this amended order. We agree that the amended order (while correct in substance) was of no effect and must be vacated since the trial court was without jurisdiction to alter the July 27, 1978 order once this appeal was filed. Burke v. Burke, 336 So. 2d 1237 (Fla. 4th DCA 1976).
Accordingly, the August 24, 1978 amended order is vacated; the July 27,1978 order is reversed; and the cause is remanded to the trial court for entry of an order denying Simanonok’s request for relief.
HOBSON, Acting C. J.(jand DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Duckworth v. Ingrid O. Duckworth, 414 So. 2d 562 (Fla. 3d DCA 1982)…la. 2nd DCA 1981). However, appellant correctly contends that an attorney’s mistaken view of the law does not amount to the excusable neglect requisite to vacating a default under Rule 1.540(b), Florida Rules of Civil Procedure. Gross v. Simanonok, 366 So. 2d 47 (Fla. 2nd DCA), cert. denied, 376 So. 2d 75 (Fla.1979); Kuykendall v. Kuykendall, 301 So. 2d 466 (Fla. 1st DCA 1974). As a general rule, many jurisdictions impute such negligence to the client, thereby preventing the vacation of a default upon reten…
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Paladin Props. v. Fam. Inv. Enters., 952 So. 2d 560 (Fla. 2d DCA 2007)…entirely on its own speculation. Such speculation is an improper basis for vacating a default judgment, particularly when the record shows that the trial court had the relevant documents before it when it ruled. For example, in Gross v. Simanonok, 366 So. 2d 47, 49 (Fla. 2d DCA 1978), Simanonok sought to set aside a final default judgment on the ground that Gross had misrepresented to the trial court that she sought to avoid the contract with Simano-nok so that she could retain her homestead, when, in fact…
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Waiswilos v. Feacher, 370 So. 2d 1250 (Fla. 4th DCA 1979)…ies. Varnes v. Kirk, 251 So. 2d 324 (Fla. 1st DCA 1971). Such was true here; the order of the court dismissing the action in 1972 was not void, but merely erroneous and relief was not available to appellee under Rule 1.540(b)(4). Gross v. Simanonok, 366 So. 2d 47 (Fla. 2d DCA 1978). Even so, such rule requires that a motion for reason that the judgment or decree is void must be made within “a reasonable time.” A motion filed over five years after the dismissal was not filed within such reasonable time. Trawi…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Fiber Crete Homes, Inc. v. Division OF Administration, 315 So. 2d 492 (Fla. 4th DCA 1975)
- Burke v. Burke, 336 So. 2d 1237 (Fla. 4th DCA 1976)
- Leander Carroll and Jessie J. Carroll v. Dougherty, 355 So. 2d 843 (Fla. 2d DCA 1978)